Constitutional Law Commons^™

Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber

Faculty Scholarship

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …

Beard And Uber-Beard, Mark A. Graber

Faculty Scholarship

No abstract provided.

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

One And Inseparable: The Union And Deliberative Conduct In Webster's "Reply To Hayne.", James M. Farrell

Communication

In Daniel Webster's view, the survival of the Union required not only an orator who could defend the Constitution as he did against Robert Hayne, but one who could embody the spirit of the constitution in deliberative performance. Webster uses his performance in debate not only to assail his opponent, defend New England, and expound on the Constitution, but further to demonstrate with his own oratory the abiding value of decorum, prudence, and eloquence in the national life. Webster becomes the ideal of deliberative performance as he contrasts his own conduct in debate with that of his Southern opponent. Webster’s …

The Child Independence Is Born: James Otis And Writs Of Assistance, James M. Farrell

Communication

This chapter is a reexamination of the Writs of Assistance speech by James Otis. In particular, it is a reconsideration of the evidence upon which rests the historical reputation of Otis’s address. Are the claims by historians who credit Otis with sparking the Revolutionary movement in colonial America warranted or not? That reassessment begins with a detailed review of the nature and function of writs of assistance within the political, legal, and economic environment of colonial Massachusetts. It then turns to an analysis of the legal dispute over writs of assistance in the 1761 trial. From there we will reconstruct …

Experimenting With Religious Liberty: The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Rethinking The Right To Vote Under State Constitutions, Michael T. Morley

Scholarly Publications

No abstract provided.

A Dynamic Theory Of Judicial Role, David Landau

Scholarly Publications

Recent scholarship has focused heavily on the activism of courts in the fragile democracies of the “Global South.” Courts in countries like India, Colombia, and South Africa have issued landmark decisions in difficult political environments, in the process raising unanswered questions about the appropriate conception of judicial role in these climates. Much of the judicial and academic effort in these contexts is self-consciously oriented towards using courts to carry out basic improvements in the quality of political systems seen as badly deficient. In other words, the core task is to improve the quality of the democratic system over time. These …

Noel Canning And Remedial Obligation Under The Constitution, John M. Greabe

Law Faculty Scholarship

There is a pervasive assumption that the Supreme Court's ruling in NLRB v. Noel Canning has rendered void the decisions of the Board during the period when it lacked a quorum because a majority of its members held their posts through unconstitutional recess appointments. The assumption is unfounded. The question of remedy for the wrong identified in Noel Canning should not be decided in the air; it should be decided contextually, as one involving whether and how to provide relief to parties affected by a wholly concluded constitutional violation, in a manner that is akin to harmless- and plain-error review.

The Vietnam Draft Cases And The Pro-Religion Equality Project, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

No Article Iii Standing For Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision In Washington Environmental Council V. Bellon, Bradford Mank

Faculty Articles and Other Publications

In Washington Environmental Council v. Bellon, the Ninth Circuit recently held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the Supreme Court held a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied but did not decide that private parties …

Is Prudential Standing Jurisdictional?, Bradford Mank

Faculty Articles and Other Publications

The Supreme Court has clearly treated the Constitution’s Article III standing requirements as mandatory jurisdictional hurdles that a plaintiff must meet for each form of relief sought before federal courts may consider the merits of a case. But the Supreme Court has never squarely held that prudential standing is a jurisdictional issue that must be decided before the merits in every single case. A 1975 Supreme Court decision suggested in dicta that prudential standing doctrine plays a crucial role in preventing federal courts from addressing political questions, but a 1984 Court decision implied in dicta that prudential standing is less …

Clapper V. Amnesty International: Two Or Three Competing Philosophies Of Standing Law?, Bradford Mank

Faculty Articles and Other Publications

In its 2013 decision Clapper v. Amnesty International, the Supreme Court invoked separation of powers principles in holding that public interest groups alleging that the Government was spying on their foreign clients failed to demonstrate Article III standing because they could not prove that the future surveillance injury that they purportedly feared was “certainly impending.” Justice Breyer’s dissenting opinion argued “commonsense” suggested that the Government was spying on the plaintiffs’ foreign clients and proposed a “reasonable” or “high” probability standing test. Implicitly, the Clapper decision presented a third approach to standing decisions. In footnote 5, the majority opinion acknowledged that …

Torts And Civil Rights Law: Migration And Conflict: Symposium Introduction, Sandra F. Sperino

Faculty Articles and Other Publications

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court …

Let's Pretend Discrimination Is A Tort, Sandra F. Sperino

Faculty Articles and Other Publications

In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.

This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite …

Amicus Brief In United States V. Windsor By Scholars For The Recognition Of Children's Constitutional Rights, Tanya Washington, Catherine Smith, Susannah Pollvogt

Scholarly Articles

This amicus brief filed by Scholars of the Constitutional Rights of Children in Windsor turns the spotlight on children in same-sex families. The brief enumerates the many ways Section 3 of DOMA impairs children's interests by denying federal recognition of their parents' marriages. The brief was cited in Respondent's Brief to the Supreme Court for its central thesis: children are a vulnerable demographic which deserves government action that serves their interests, not government action that impairs their interests.

State Constitutional Études: Variations On The Theme Of A Contemporary State Constitutional Problem, Justin R. Long

Law Faculty Research Publications

No abstract provided.

Chapter 623: Giving The Wrongfully Convicted A Better Chance At Review, Natasha Machado

McGeorge Law Review

No abstract provided.

Has Society Become Tolerant Of Further Infringement On First Amendment Rights?, Nicholas Primrose

Barry Law Review

No abstract provided.

The Right To Vote Under State Constitutions, Joshua A. Douglas

Vanderbilt Law Review

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …